Soon, There will be nothing like IPR...if
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naavi.org has often advocated that "Over Regulation" is bad for the society. The dangers that have been highlighted are the possibility of "Power" being misused by the regulators and "Corruption" taking root. Over regulation also leads to unmanageable work load on the regulators and enforcers forcing them to be "Selective" in prosecution and "Dis proportionate Punishments" being meted out to "Teach a lesson to Others". All these remain issues which are relevant to the Internet regulations in India.

Another angle of "Over Regulation" which is becoming increasingly evident in the American society is a tendency of some "Over Enthusiastic Litigants"  (OEL) who have a "General Intolerance of the other members of the Society and are prepared to "Misuse Law" for unrealistic personal gains.

The concept of Intellectual Property Rights were built on the need to protect "Authors" and "Inventors" from exploitation by unscrupulous persons in the society who had access to better money resources. "Copyright" and "Patent" was born out of this consideration. Thus "Copyright" and "Patent" were rights aimed "Against Exploitation of the Society". 

The "Trademark" right however has a different theme. It is to protect the Consumer from being mislead or help him get better quality service or product from a "Reliable" source which can be "Identified" through the trademark. 

Trade marks can be created by appropriate "Registration" when a new product or service is introduced. In such cases, the " Implicit Promise" behind the "Trade Mark" gets built up with the Consumers trying out the product and being satisfied with it. 

However, when "Brand Names" are created through "Advertising Exposures" which build a "Perceived Value", the "Brand" becomes a function of the "Power to Spend Advertising Money". In such a case "Brand" is a tool of the "Rich" to create "Non Existent Features" in a product through "Incessant Claims". Thus "Trade Marks" born out of "Brands" are tainted with the possibility of being a "False Creation by exploitation of the Media by the Rich". 

Over the last few years, the clashes between "Trade Mark Owners" with Domain name owners in the Cyber world has lead to the concept of "Trade Mark" as a "Desirable Right" are being questioned. It appears that the recent actions by the Over Enthusiastic Litigants (OEL) has thrown a further challenge to the society to think of a review of the existing system.

Indians are already sick with the attempt of Maruti Udyog Ltd, trying to establish its right on any Domain name using the string of characters "maruti". WIPO has exposed its irrationality and ignorance in upholding the views of Maruti Udyog without understanding the implications and consequences. Now we await the deliverance of "maruti" by the Delhi High Court which is examining the appeal.

The situation in India was corrupted with the Yahoo case against Yahooindia.com and Rediff case with radiff.com. To my mind both these cases represent adhoc views at a point of time when law is evolving and need to be reviewed. For example, to most Indian minds, the word "Yahoo" instantly recalls the shout of "Shammi Kapoor" in a famous Hindi song. If I who do not often see Hindi films can recall the song so strongly, whenever the word "Yahoo" is heard, I think the "Trade mark" ( as a audio) or "Copyright" (on the word) for Yahoo belongs to  the writer of the song. I am sure that the song was written and picturised long before Yahoo.com came into being. I wish a PIL in India should explore whether the multi billion dollar mark "Yahoo" belongs to an Indian film song script writer.

Same way radiff.com appears to be a variant of "radish.com" as much as it is held a variant of "rediff.com". The infringement is therefore only a figment of imagination. 

(Let me however clarify that the infringement is attributed to the content and the look and feel of the site design, I have no objection. My objection is limited to the claim of infringement on the basis of similarity of names).

The Amazon patent has been written about a lot and has now under threat of a possible rejection in Japan.

The linking norms set by Ansette.com.au (See details here) takes the concept of tresspass through  hyperlinking to a new dimension.

Now the International auto giant Ford is taking the Domain name litigation to yet another  new plain. Readers of naavi.org remember that Ford once attempted (Thank God! it failed) to claim rights on the domain name "Model-E.com" because of the association of Model-T cars to Ford. Now Ford has successfully launched an assault on the holder of jaguarcenter.com, an animal activist working on info about Jaguar the wild animal of the Big Cat family. Readers would be surprised to know that even after the owner has given up the name because he did not want to fight, Ford is hoisting a case for damages to the extent of US $ 3000 on the registrant of jaguarcenter.com. Time to suggest Natioanl Geographic to stop producing programmes on "Jaguar"!..Height of arrogance one would say.

Now yet another interesting but sad case has been reported from a group of  Copyright lawyers, who have hoisted a case against a person who posted a "Building Code" drafted by the group and forwarded to the local legislature for adoption as a law. This has raised the question of whether "Law Can be copyrighted". If tomorrow Dr Ambedkar's family starts claiming copyright on Indian Constitution (Hopefully with all the members of the Constitution Committee), every time the constitution is quoted in some form , a royalty may be claimed by the writers of the constitution.!! (Forget the  past, if ITA-2000 is copyrighted by the drafting committee, I will have to remove it from naavi.org!).

Do we see how ridiculous the OEL s can be?

Presently, a case is building up in India with Indya.com getting an exclusive right to host KBC related information.(See Details Here) If any other site talks of KBC, they can be hauled up for Copyright violations.  We have already heard of Onida issuing a few notices related to domain names. Have OEL s landed in India?  Are we seeing the early days of "Copyright Intoxication" hitting the Indian market? ..a time to ponder.

It is the irrational actions of such OEL s that pose a threat to the very continuance of IPR s in the future society. If Law is bent to sever greedy ends, the society will revolt and even desirable laws will be demolished. The Cyber society might have reluctantly accepted the Napster verdict, but let law makers and law enthusiasts beware. Any legislation that has a wide spread condemnation of the society, will face the risk of being ejected.

We in India are familiar with such  issues in different contexts. It is worth mentioning them  here for the purpose of helping us to understand the implications. First was the case of the "Babri Masjid Demolition".    ( International audience who may not know the details may refer here) where a mob of people took law into their hands in a moment of emotional outburst. Second was the case of the citizens of the state of Tamil Nadu which elected to power by a overwhelming mandate, a person who was technically held not qualified to stand for election itself.  ( International audience who may not know the details may refer here)

In the light of our experiences of the real world, it is necessary to remember that the OEL s will ultimately face the wrath of the community and the backlash could be so strong that the very concept of Intellectual Rights may be turned upside down. Let's not forget that if there had been no exploitation by Capitalists, Communism would not have been born. Now that Communism is nearly dead in the real world, let's not give it a reason to survive and grow in the Cyber world.

Naavi
May 15, 2001 

Read about the Ford case against jaguarcenter.com

Can Law be copyrighted?

Read about the KBC- Indya.com deal

Ansette.com.au sets new norms for hyperlinking

What is Babri Masjid Demolition Issue? 

What is the Tamil Nadu Election Issue?



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